DOCTRINE OF ECLIPSE AND SEVERABILITY

Doctrine of Eclipse

The doctrine of eclipse is based on a principle that the law which contravenes Fundamental Rights is not void ab initio. It remains in a morbid condition and unenforceable. It is not totally wiped out from the statute book. They are valid for all past transactions i.e. transactions prior to commencement of Constitution. They also remain valid for the determination of rights of persons who have not been given fundamental rights by the Constitution. Supreme Court in Bhikhaji v. State of Madhya Pradesh, AIR 1955 SC 781 formulated the doctrine of eclipse. The court held that under this doctrine the law is overshadowed by fundamental right and remain dormant. It becomes enforceable as soon as the constitutional impediment is removed by amending the impugned fundamental right. The law is merely eclipsed for the time being and as soon as eclipse is removed the law begins to operate.

Applicability of doctrine of eclipse to post-constitutional laws: In Sagir Ahmed v. State of Uttar Pradesh, AIR 1954 SC 728 the Supreme Court held that the doctrine of eclipse is only applicable to pre-constitutional laws and not to post-constitutional laws. The court reasoned that the post-constitutional laws, if they contravene Part III, are void ab initio and a subsequent constitutional amendment cannot revive them. On the other hand the voidness of pre-constitutional law is not from inception but only from the date of commencement of the Constitution. Supreme Court distinguished between Article 13(1) and Article 13(2) and held that Article 13(2) applies to the post-constitutional laws and prohibits the State from making a law which infringes a fundamental right while Article 13(1) applies to pre-constitutional law and contains to such prohibition. This view was endorsed by the court in Deep Chand v. State of U.P. AIR 1959 SC 648 and Mahendra Lal Jain v. State of U.P. AIR 1963 SC 1019.

Subsequently in State of Gujarat v. Ambica Mills, AIR 1974 SC 1300 the court modified its view expressed in Deep Chand’s case, Mahendra Lal Jain’s case and Sagir Ahmed’s case. The court held that post-constitutional laws, which are inconsistent with fundamental rights, are not void ab initio for all purposes. Void under Article 13(2) means void against persons whose fundamental right has been taken away. If a post-constitutional law takes away right conferred by Article 19 then such law will be void only with respect to citizens because rights under Article 19 are given only to citizens. Such law will validly operate with respect to non-citizens. Since such laws are not void ab intio for all purposes the doctrine of eclipse can be applied to post-constitutional laws as well.

In other words, the court held that if the law contravenes fundamental right which is limited to citizens only, it will continue to operate with respect to non-citizens. Court clearly held that such law cannot be revived with respect to citizens merely by an amendment of fundamental right. It is because Article 13(2) affects the competency of legislature to enact laws which takes away fundamental rights. It means that the law will have to be re-enacted after the amendment of fundamental right if it is desired to make it operative.  However, Supreme Court in L. Jagannath v. Authorized Officer, AIR 1972 SC 425 held that if an Act is declared unconstitutional on the pretext of Article 13(2), it can be revived only when it is put in Ninth Schedule because Article 31B cures the defect of the Act with retrospective effect. Later, the Supreme Court in Dulare Lodh v. IIIrd Additional District Judge, Kanpur, AIR 1984 SC 1260 applied the doctrine of eclipse in post-constitutional law against citizens.

Doctrine of Severability

Articles 13(1) and (2) provide that the law is void only ‘to the extent of inconsistency or contravention’ with the fundamental rights. It means that the whole law is not void under Article 13 but only that portion of law is void which contravenes fundamental rights. Rest of the law may continue to stand and remain operative.

Doctrine of severability means that if the offending provision can be separated from what is constitutional then only the part of the law which is in the contravention will be declared void. Whole law need not be struck down. The phrase ‘to the extent of inconsistency’ and ‘to the extent of contravention’ clearly indicates that the intention of the framers of the Constitution was to strike down only that portion of law which is ultra vires to the Constitution.

There is, however, one exception to this. If the valid portion of law is so closely mixed with the invalid portion that if the invalid portion is struck down the rest of the statute will be meaningless or will not be able to stand on its legs then in such situation the whole statute will be declared void. The Supreme Court elaborately discussed the doctrine of severability in R.M.D.C. v. Union of India, AIR 1957 SC 628 and held that when after removing the invalid portion what remains is a complete code then there is no necessity to declare the whole Act void. Supreme Court laid down the following propositions with respect to doctrine of severability:-

1.     The intention of legislature is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

2.     If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another then the invalidity of a portion must result in invalidity of the Act in its entirety.

3.     If they are so distinctive and separate that after striking out what is invalid and what survives can stand on its own legs, is workable and is a complete code the it will be upheld.

Supreme Court in Romesh Thapar v. State of Madras, AIR 1950 SC 124 held that where the law authorizes restrictions on Fundamental Rights which is wide enough to cover restrictions both within and without the limits provided by the Constitution and it is not possible to separate the two then the whole law is to be struck down. In Kihota Hollohan v. Zachillhu (1992) Supreme Court held that 10th Schedule minus para 7 remains valid and constitutional. The remaining provisions of 10th Schedule are complete in themselves and workable.

Author & Former Judge

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